An Exhaustive Ally’s Guide to the Bathroom Debate: Part 1

Want to be better equipped for the next time you argue with a bigot? Here’s a place to start.

Marriage equality has been the law of the land for just about a year now, and conservative lawmakers and activists have set their sights on the transgender community as their new target. There are many reasons for this, but that’s a topic for another post. The most recent and most contentious arguments have sadly, been focused on something as simple as where and how we go to the bathroom. A myriad of awful laws have been proposed (some even passed) that go from bad to worse in their treatment of the trans community. There have been bills that place a bounty on the heads of transgender people found to be in the “wrong” bathroom. There have been laws that threaten 6 months in jail for the crime of using the “wrong” bathroom. A South Dakota state lawmaker even called for genital inspections for high school athletes who identify as transgender. As a trans activist who speaks out often on these issues, I’m often asked by allies how they can engage in these arguments on our behalf. I welcome these inquiries, and I encourage people to continue to reach out. These requests have been so numerous though, that I think they warrant an exhaustive written guide to the debate.

In this article, and the series it’s part of, I will lay out some of the most common arguments in favor of these bathroom bills and the reasons why none of those arguments hold even a shred of legitimacy.

The person pretending to be transgender predator in the bathroom

This is by far the most pervasive argument. The story goes that if you have a law (or company policy) that allows someone to use the bathroom that matches their gender identity, anyone can simply claim they are transgender to gain access to a bathroom for nefarious purposes. Like many of these arguments, to a person who’s done zero research on the topic, this argument may sound reasonable at the most surface level. It takes a VERY tiny dip below the surface for the argument to fall completely apart.

Refutation 1:

It doesn’t happen. In hours and hours spent scouring the net, I’ve yet to find a single verifiable case of a person pretending to be transgender specifically to gain access to a gendered space to do something nefarious. You will find some right wing websites that will advance certain cases where this has supposedly happened. However, the slightest bit of research will show that at best, their claims badly misrepresent the facts. I’ll go ahead and go over the stories you’re likely to find and how you can respond when presented with them.

Jessica Hambrook is a person who was accused of claiming to have a trans identity to gain access to shelters meant for domestic abuse survivors in Toronto, Canada. (I’m going to respect her claim of her trans identity because that’s a thing we should do even with people we don’t like or have done horrible things. There are conflicting reports as to whether or not she was lying about her trans identity, and I’m going to err on the side of respecting it.) Conservative Canadian lawmakers blamed this incident on a law known as Toby’s law, which amended Toronto’s human rights code to add gender identity and expression as protected classes. What they failed to mention is that the assaults happened in the early months of 2012, while the law passed in June. What an inconvenient detail to miss! A savvy debater might point out that the shelter this happened in had inclusive policies in place that welcomed transgender women regardless of the law at the time. But to say this incident happened because of the law is obviously way off the mark. It is also worth noting that Hambrook was already a convicted sex offender. The bad move here clearly was to allow a convicted sex offender into a place where they might easily victimize other people. It had absolutely nothing to do with a transgender inclusive policy.

Colleen Francis –

Colleen Francis is a Washington state transgender woman who was accused in the media of exposing herself to underage teenage girls in a locker room. The surface level reporting seems pretty damning – if you only read the right wing reporting of the incident. In a letter to Vice President of Student Affairs at Everest College, Alliance Defending Freedom senior legal counsel David Hacker wrote “Clearly, allowing a person who is biologically a man to undress and expose himself to young girls places those girls at risk for emotional distress and harm. Any reasonable person would view this as dangerous to the young girls involved.” Overblown fears about the mere sight of genitalia aside, this one seems pretty bad. But a further look reveals what a further look often does. There are several facts completely left out of right wing accounts of the story. The salient points are these:

The girls who saw Ms. Francis were in an area that was supposed to be off limits to them

Unless one is specifically looking in, you can’t see people inside the sauna she was in when this “incident” occurred

Colleen and a cisgender female friend of hers were in the sauna by themselves talking

She never acted to expose herself to the children

She never walked around nude in an area where children were expected to be present

This is confirmed by Todd Sprague, executive director of college relations for Evergreen State university in a phone call that can be found and listened to here.

Thomas Lee Benson –

In October of 2011, Thomas Lee Benson was sentenced to 9 months in jail on charges of second degree criminal trespass, unlawful entry to a motor vehicle, and frequenting a place where children regularly congregate. Why was it a crime for him to frequent a place where children regularly congregate, you ask? Because Thomas Lee Benson was a convicted multiple repeat sex offender. He was known for dressing as female and entering women’s spaces dressed as such. And yes, since 2008, Oregon state law has had protections in place that include gender identity in public accommodations. Again this seems like it might be the perfect posterchild for the argument against such laws. But that would completely ignore the point that this person was a CONVICTED SERIAL SEX OFFENDER. All of the things he did were already illegal, and no bathroom law was needed to make them so.

The story of Thomas Lee Benson is far more effective as commentary on the ways we, as a society deal with people who commit sex crimes, most especially those who offend repeatedly. It was illegal for him to go where children congregate, and this did not stop him. It was illegal for him to sexually assault the people he violated, this fact did not stop him. So, someone please help me out on how a law like HB2 or any of the other laws proposed will create a magic barrier at the bathroom door to keep people like Thomas Lee Benson out. If we’re being honest with ourselves, we know they will not. I will expand further on the meme of sexual violence in the context of these laws in a later post.

Pauline Witherspoon –

I will be the first to tell you that not every transgender person is a pure hearted, good natured, loving and kind person. Some of us sometimes do awful things. It sort of comes with the territory of being human. Pauline Witherspoon is a transgender woman who is actually a convicted sex offender. She was convicted in 1990 for the sexual assault of both a 14 and 15 year old girl. I wasn’t able to find anything more about the details of her crimes than that. She was also arrested in 2011 for sending nude pictures of herself through the internet. Her place in the argument against inclusive laws surrounding trans folks in bathrooms? She used the bathroom. The discussion surrounding what we should and shouldn’t be doing with convicted sex offenders is beyond the scope and the purpose of this article, though it is an important conversation to have. However, the only story you hear about Pauline is that she simply used the restroom. Someone else was made uncomfortable by her presence, called the police, and she was issued a citation… for using the bathroom. Convicted sex offenders get no pass from me, but using this story as an argument against inclusive laws fails completely.

You may run into other stories, but they all, invariably turn out like the ones above. They are unsubstantiated stories like “news station X reports that a person did a thing!” You can click through several different supposed source links without finding any references to names or places. You will find plenty of stories of people simply being made uncomfortable by the presence of a trans person, but I’m hoping if you’re still reading this, you would disagree that my access to society should be limited because other people are uncomfortable with me.

Next up, I’ll be unpacking why we’re so focused on trans people when it comes to the subject of sexual violence instead of, you know, sexual violence.